AMERICAN HUMANIST ASSOCIATION; STEVEN LOWE; FRED EDWORDS; BISHOP MCNEILL, Plaintiffs - Appellants,
MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION, Defendant-Appellee, THE AMERICAN LEGION; THE AMERICAN LEGION DEPARTMENT OF MARYLAND; THE AMERICAN LEGION COLMAR MANOR POST 131, Intervenors/Defendants - Appellees, FREEDOM FROM RELIGION FOUNDATION; CENTER FOR INQUIRY, Amici Supporting Appellant, THE BECKETT FUND FOR RELIGIOUS LIBERTY; JOE MANCHIN; DOUG COLLINS; VICKY HARTZLER; JODY HICE; EVAN JENKINS; JIM JORDAN; MARK MEADOWS; ALEX MOONEY; STATE OF WEST VIRGINIA; STATE OF ALABAMA; STATE OF ARIZONA; STATE OF ARKANSAS; STATE OF FLORIDA; STATE OF GEORGIA; STATE OF HAWAII; STATE OF IDAHO; STATE OF INDIANA; STATE OF KANSAS; STATE OF KENTUCKY; STATE OF LOUISIANA; STATE OF MICHIGAN; STATE OF MONTANA; STATE OF NEVADA; STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF OKLAHOMA; STATE OF RHODE ISLAND; STATE OF SOUTH CAROLINA; STATE OF SOUTH DAKOTA; STATE OF TEXAS; STATE OF UTAH; STATE OF VIRGINIA; STATE OF WISCONSIN, Amici Supporting Appellee.
ARGUED: December 7, 2016
from the United States District Court of Maryland, at
Greenbelt. Deborah K. Chasanow, Senior District Judge.
Lynn Miller, AMERICAN HUMANIST ASSOCIATION,
Washington, D.C., for Appellants.
Christopher John DiPompeo, JONES DAY, Washington, D.C.;
William Charles Dickerson, MARYLAND-NATIONAL CAPITAL PARK AND
PLANNING COMMISSION, Riverdale, Maryland, for Appellees.
A. Niose, AMERICAN HUMANIST ASSOCIATION, Washington, D.C.;
Daniel P. Doty, LAW OFFICE OF DANIEL P. DOTY, P.A.,
Baltimore, Maryland, for Appellants.
R. Gardner, Tracey A. Harvin, Elizabeth L. Adams,
MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION,
Riverdale, Maryland, for Appellee Maryland-National Capital
Park and Planning Commission; Noel J. Francisco, JONES DAY,
Washington, D.C.; Roger L. Byron, Kenneth A. Klukowski, FIRST
LIBERTY, Plano, Texas, for Appellees The American Legion, The
American Legion Department of Maryland, and The American
Legion Colmar Manor Post 131.
Patrick C. Elliott, FREEDOM FROM RELIGION FOUNDATION,
Madison, Wisconsin, for Amici Freedom From Religion
Foundation and Center For Inquiry.
C. Rassbach, THE BECKET FUND FOR RELIGIOUS LIBERTY,
Washington, D.C.; Paul J. Zidlicky, SIDLEY AUSTIN LLP,
Washington, D.C., for Amicus The Becket Fund for Religious
Charles J. Cooper, David H. Thompson, Howard C. Nielson, Jr.,
Haley N. Proctor, COOPER & KIRK, PLLC, Washington, D.C.,
for Amici Senator Joe Manchin and Representatives Doug
Collins, Vicky Hartzler, Jody Hice, Evan Jenkins, Jim Jordan,
Mark Meadows, and Alex Mooney.
Patrick Morrisey, Attorney General, Elbert Lin, Solicitor
General, Julie Marie Blake, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston,
West Virginia, for Amicus State of West Virginia; Steve
Marshall, Attorney General of Alabama, Montgomery, Alabama,
for Amicus State of Alabama; Mark Brnovich, Attorney General
of Arizona, Phoenix, Arizona, for Amicus State of Arizona;
Leslie Rutledge, Attorney General of Arkansas, Little Rock,
Arkansas, for Amicus State of Arkansas; Pamela Jo Bondi,
Attorney General of Florida, Tallahassee, Florida, for Amicus
State of Florida; Christopher M. Carr, Attorney General of
Georgia, Atlanta, Georgia, for Amicus State of Georgia;
Douglas S. Chin, Attorney General of Hawaii, Honolulu,
Hawaii, for Amicus State of Hawaii; Lawrence G. Wasden,
Attorney General of Idaho, Boise, Idaho, for Amicus State of
Idaho; Curtis Hill, Attorney General of Indiana,
Indianapolis, Indiana, for Amicus State of Indiana; Derek
Schmidt, Attorney General of Kansas, Topeka, Kansas, for
Amicus State of Kansas; Andy Beshear, Attorney General of
Kentucky, Frankfort, Kentucky, for Amicus State of Kentucky;
Jeff Landry, Attorney General of Louisiana, Baton Rouge,
Louisiana, for Amicus State of Louisiana; Bill Schuette,
Attorney General of Michigan, Lansing, Michigan, for Amicus
State of Michigan; Timothy C. Fox, Attorney General of
Montana, Helena, Montana, for Amicus State of Montana; Adam
Paul Laxalt, Attorney General of Nevada, Carson City, Nevada,
for Amicus State of Nevada; Wayne Stenehjem, Attorney General
of North Dakota, Bismarck, North Dakota, for Amicus State of
North Dakota; Michael DeWine, Attorney General of Ohio,
Columbus, Ohio, for Amicus State of Ohio; E. Scott Pruitt,
Attorney General of Oklahoma, Oklahoma City, Oklahoma, for
Amicus State of Oklahoma; Peter F. Kilmartin, Attorney
General of Rhode Island, Providence, Rhode Island, for Amicus
State of Rhode Island; Alan Wilson, Attorney General of South
Carolina, Columbia, South Carolina, for Amicus State of South
Carolina; Marty J. Jackley, Attorney General of South Dakota,
Pierre, South Dakota, for Amicus State of South Dakota; Ken
Paxton, Attorney General of Texas, Austin, Texas, for Amicus
State of Texas; Sean D. Reyes, Attorney General of Utah, Salt
Lake City, Utah, for Amicus State of Utah; Mark R. Herring,
Attorney General of Virginia, Richmond, Virginia, for Amicus
Commonwealth of Virginia; Brad D. Schimel, Attorney General
of Wisconsin, Madison, Wisconsin, for Amicus State of
GREGORY, Chief Judge, and WYNN and THACKER, Circuit Judges.
THACKER, CIRCUIT JUDGE:
case we are called upon to decide whether the Establishment
Clause is violated when a local government displays and
maintains on public property a 40-foot tall Latin cross,
established in memory of soldiers who died in World War I.
The district court determined that such government action
does not run afoul of the Establishment Clause because the
cross has a secular purpose, it neither advances nor inhibits
religion, and it does not have the primary effect of
disagree. The monument here has the primary effect of
endorsing religion and excessively entangles the government
in religion. The Latin cross is the core symbol of
Christianity. And here, it is 40 feet tall; prominently
displayed in the center of one of the busiest intersections
in Prince George's County, Maryland; and maintained with
thousands of dollars in government funds. Therefore, we hold
that the purported war memorial breaches the "wall of
separation between Church and State." Everson v. Bd.
of Educ., 330 U.S. 1, 16 (1947) (internal quotation
marks omitted). Accordingly, we reverse and remand.
1918, some Prince George's County citizens started
raising money to construct a giant cross, in addition to a
previously established plaque, to honor 49 World War I
soldiers from the county. The private organizers required
each donor to sign a pledge sheet recognizing the existence
of one god. It stated:
WE, THE CITIZENS OF MARYLAND, TRUSTING IN GOD,
THE SUPREME RULER OF THE UNIVERSE, PLEDGE FAITH IN
OUR BROTHERS WHO GAVE THEIR ALL IN THE WORLD WAR TO MAKE THE
WORLD SAFE FOR DEMOCRACY. THEIR MORTAL BODIES HAVE TURNED TO
DUST, BUT THEIR SPIRIT LIVES TO GUIDE U.S. THROUGH LIFE IN
THE WAY OF GODLINESS, JUSTICE, AND LIBERTY.
WITH OUR MOTTO, "ONE GOD, ONE COUNTRY AND ONE
FLAG, " WE CONTRIBUTE TO THIS MEMORIAL CROSS
COMMEMORATING THE MEMORY OF THOSE WHO HAVE NOT DIED IN VAIN.
1168 (emphasis supplied). Local media described the proposed
monument as a "mammoth cross, a likeness of the Cross of
Calvary, as described in the Bible." Id. at
1115. The private organizers held a groundbreaking ceremony
on September 28, 1919, at which time the city of Bladensburg
owned the land.
1922, the private organizers ran out of money and could not
finish the project. So, the Snyder-Farmer Post of the
American Legion (the "Post") assumed
responsibility. At its initial fund raising drive, the Post
had a Christian prayer-led invocation. Later that same year,
on Memorial Day, the Post held memorial services around the
unfinished monument, at which a Christian chaplain led
prayer, and those in attendance sang the Christian hymn
"Nearer My God to Thee." J.A. 2096. The Post
ultimately completed the monument in 1925 and had Christian
prayer services at the dedication ceremony, during which only
Christian chaplains took part. No other religions were
completion, the monument at issue stood four stories tall in
the shape of a Latin cross located in the median of a
three-way highway intersection in Bladensburg, Maryland (the
"Cross"). Over the years, memorial services
continued to occur on a regular basis at the Cross, and those
services often included prayer at invocations and
benedictions, and speaker-led prayers. Sunday worship
services have at times been held at the Cross. Nothing in the
record indicates that any of these services represented any
faith other than Christianity.
March 1, 1961, Appellee Maryland-National Capital Park and
Planning Commission (the "Commission"), a state
entity, obtained title to the Cross and the land on which it
sits. According to the Commission, it acquired the Cross and
land in part because of safety concerns arising from the
placement of the Cross in the middle of a busy traffic
median. Therefore, the Commission purports that it assumed
responsibility to "maintain, repair, and otherwise
car[e] for" the Cross. J.A. 2529. The Commission has
since spent approximately $117, 000 to maintain and repair
the Cross, and in 2008, it set aside an additional $100, 000
the 40-foot tall Cross is situated on a traffic island taking
up one-third of an acre at the busy intersection of Maryland
Route 450 and U.S. Route 1 in Bladensburg. The American
Legion's symbol -- a small star inscribed with
"U.S." -- is affixed near the top of the Cross, and
an American flag flies in the vicinity of the Cross. The
Cross sits on a rectangular base, with each side inscribed
with one of four words: "valor, " "endurance,
" "courage, " and "devotion." J.A.
1963 (capitalization omitted). Additionally, one side of the
base contains a two-foot tall, nine-foot wide plaque listing
the names of the 49 soldiers from Prince George's County
whom the Cross memorializes, followed by a quote by President
Woodrow Wilson. However, the plaque is located on only one
side of the base, which bushes have historically
obscured. Moreover, the plaque is badly weathered,
rendering it largely illegible to passing motorists.
Cross is part of a memorial park honoring veterans in
Bladensburg (the "Veterans Memorial Park"). A small
sign titled "Star-Spangled Banner National Historical
Trail" is located on a walking path approximately 600
feet north of the Cross. This small sign -- which, like the
plaque at the base of the Cross, is not readily visible from
the highway -- serves as the only formal marker identifying
the area as a memorial park by stating, "This crossroads
has become a place for communities to commemorate their
residents in service and in death." J.A. 1870. The other
monuments in the memorial park area include a War of 1812
memorial, a World War II memorial, a Korean and Vietnam
veterans memorial, and a September 11th memorial walkway.
These surrounding monuments are each located at least 200
feet away from the Cross, with the War of 1812 memorial
located one-half mile away. No other monument in the area is
taller than ten feet, and there are no other religious
symbols in the park.
the above description of the Cross and its placement in the
park, various photographs from the record depicting the Cross
are attached to this opinion. See J.A. 34 (image of
the Cross before this case was filed), 1098 (closer image of
the Cross), 1891 (image of the weathered plaque at the base
of the Cross); Supp. J.A. 2 (overhead image of the Veterans
Steven Lowe, Fred Edwords, and Bishop McNeill are
non-Christian residents of Prince George's County who
have faced multiple instances of unwelcome contact with the
Cross. Specifically, as residents they have each regularly
encountered the Cross while driving in the area, believe the
display of the Cross amounts to governmental affiliation with
Christianity, are offended by the prominent government
display of the Cross, and wish to have no further contact
with it. Per their complaint, they believe "a more
fitting symbol of [veterans'] sacrifice would be a symbol
of the Nation for which they fought and died, not a
particular religion." J.A. 25. Appellant American
Humanist Association ("AHA") is a nonprofit
organization that advocates to uphold the founding principle
of separation of church and state. AHA is suing on behalf of
noted, Appellee Commission, a state entity, owns and
maintains the Cross and the traffic island on which it
stands. Appellees-Intervenors are the American Legion, the
American Legion Department of Maryland, and the American
Legion Colmar Manor Post 131 (collectively, "the
Legion"). The Legion is a private organization
focused on "Americanism" and the armed forces. J.A.
sued the Commission under 42 U.S.C. § 1983, alleging the
Commission's display and maintenance of the Cross
violates the Establishment Clause. Appellants seek a
declaratory judgment that this conduct violates the
Establishment Clause and Appellants' constitutional
rights, an injunction enjoining the Commission from
displaying the Cross on public property,  nominal damages,
and attorney's fees and costs.
and Appellees filed cross-motions for summary judgment, and
the district court granted summary judgment to Appellees. In
doing so, the district court analyzed Appellants' claim
pursuant to Lemon v. Kurtzman, 403 U.S. 602 (1971).
It held the Commission owned the Cross and land for a
legitimate secular reason, that is, to maintain the highway
median. The district court also identified a second secular
purpose, which is to commemorate the 49 World War I soldiers
from Prince George's County.
district court next determined that the Cross neither
advanced nor inhibited religion because (1) the Cross has
been primarily used for veterans' events; (2) crosses are
generally regarded as commemorative symbols for World War I,
at least overseas; (3) secular war memorials surround the
Cross; and (4) the Cross has secular attributes, such as the
Legion symbol on the face of the Cross. Finally, the district
court concluded the Commission's display and maintenance
of the Cross did not amount to excessive entanglement with
religion because the Cross was not a governmental endorsement
of religion. At bottom, the district court viewed the
Commission's maintenance of the Cross as relating to
traffic safety and veteran commemoration rather than
religion. Appellants timely appealed.
review de novo a district court's grant of summary
judgment. See Elderberry of Weber City, LLC v. Living
Centers-Se., Inc., 794 F.3d 406, 411 (4th Cir. 2015).
"In doing so, we apply the same legal standards as the
district court, and view all facts in the light most
favorable to the nonmoving party." Certain
Underwriters at Lloyd's, London v. Cohen, 785 F.3d
886, 889 (4th Cir. 2015) (alterations and internal quotation
contend that the Cross is a war memorial that favors
Christians to the exclusion of all other religions. In
response, Appellees frame Appellants' claim as promoting
a strict rule that crosses on government property are per se
unconstitutional, which they assert threatens memorials
across the Nation.
initial matter, Appellees question whether Appellants have
standing to bring this claim. They argue that Appellants have
not "forgone any legal rights, " such as "the
right to drive on the public highways running through [the]
Veterans Memorial Park" "to avoid contact with the
memorial." Appellees' Br. 46 n.12. Appellees'
standing argument lacks merit.
Establishment Clause claim is justiciable even when
plaintiffs claim noneconomic or intangible injury. See
Suhre v. Haywood Cty., 131 F.3d 1083, 1086 (4th Cir.
1997); see also Int'l Refugee Assistance Project v.
Trump, 857 F.3d 554, 582 (4th Cir.), cert.
granted, 137 S.Ct. 2080 (2017). Specifically, in
religious display cases, "unwelcome direct contact with
a religious display that appears to be endorsed by the
state" is a sufficient injury to satisfy the standing
inquiry. Suhre, 131 F.3d at 1086.
non-AHA Appellants have standing because they allege specific
unwelcome direct contact with the Cross; that is, they have
each regularly encountered the Cross as residents while
driving in the area, the Commission caused such injury by
displaying the Cross, and the relief sought -- enjoining the
display of the Cross -- would redress their injury. See
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992);
see also ACLU v. Rabun Cty. Chamber of Commerce,
Inc., 698 F.2d 1098, 1108 (11th Cir. 1983) (determining
one plaintiff had standing because a Latin cross was clearly
visible from "the porch of his summer cabin" and
from the roadway he used to reach the cabin). The AHA also
has standing. An association has standing to sue on behalf of
its members if they would have standing to sue on their own,
the association seeks to protect interests germane to its
purpose, and neither the claim asserted nor the relief
requested requires its individual members to participate in
the lawsuit. See Hunt v. Wash. State Apple Advert.
Comm'n, 432 U.S. 333, 343 (1977); ACLU of Ohio
Found., Inc. v. DeWeese, 633 F.3d 424, 429 (6th Cir.
2011). Here, the AHA has members in Prince George's
County who have faced unwelcome contact with the Cross. These
interests are germane to the AHA's purpose of maintaining
the separation of church and state, and the claim and relief
sought do not require individual participation. Appellants
thus have standing to sue, and so we turn to the merits of
Establishment Clause provides, "Congress shall make no
law respecting an establishment of religion . . . ."
U.S. Const. amend. I. This clause thus guarantees religious
liberty and equality to people of all faiths. See Cty. of
Allegheny v. ACLU, 492 U.S. 573, 590 (1989),
abrogated on other grounds, Town of Greece v.
Galloway, 134 S.Ct. 1811 (2014).
generally analyzed Establishment Clause issues pursuant to
Lemon v. Kurtzman, 403 U.S. 602 (1971). See
Buxton v. Kurtinitis, 862 F.3d 423, 432 (4th Cir. 2017);
Lambeth v. Bd. of Comm'rs of Davidson Cty., 407
F.3d 266, 268 (4th Cir. 2005); Mellen v. Bunting,
327 F.3d 355, 370 (4th Cir. 2003). Per Lemon, to
comply with the Establishment Clause, a challenged government
display must (1) have a secular purpose; (2) not have a
"principal or primary effect" that advances,
inhibits, or endorses religion; and (3) not foster "an
excessive entanglement between government and religion."
Lambeth, 407 F.3d at 269-73 (internal quotation
marks omitted); see Lemon, 403 U.S. at 612-13.
"If a state action violates even one of these three
prongs, that state action is unconstitutional."
Koenick v. Felton, 190 F.3d 259, 265 (4th Cir. 1999)
(citing N.C. Civil Liberties Union Legal Found. v.
Constangy, 947 F.2d 1145, 1147 (4th Cir. 1991)); see
also Buxton, 862 F.3d at 432.
Appellees dispute Lemon's application here,
arguing that, instead, the Supreme Court's holding in
Van Orden v. Perry, 545 U.S. 677 (2005), controls.
In Van Orden, the Court addressed whether a monument
displaying the Ten Commandments on government property
violated the Establishment Clause. See 545 U.S. at
681. The monument, located between the Texas Capitol and the
Texas Supreme Court building, also displayed an eagle
grasping the American flag, two Stars of David, Greek letters
representing Christ, and an inscription indicating that a
private organization donated the monument. See id.
at 681-82. The monument stood six-feet high and
three-and-a-half feet wide, and sat among "17 monuments
and 21 historical markers commemorating the people, ideals,
and events that compose Texan identity, " id.
at 681 (internal quotation marks omitted), such as monuments
of the Heroes of the Alamo, the Texas National Guard, and the
Texas Peace Officers, see id. at 681 n.1.
plurality of the Court first decided the Lemon test
is "not useful" in the "passive" monument
context. Van Orden, 545 U.S. at 686. Rather, it
examined the role and historical meanings of God and the Ten
Commandments in our Nation's history. See id. at
686-91. The plurality first noted President George
Washington's Thanksgiving Day Proclamation of 1789, which
"directly attributed to the Supreme Being the
foundations and successes of our young Nation, " as an
example of the "unbroken history of official
acknowledgment by all three branches of government of the
role of religion in American life from at least 1789."
Id. at 686-87 (quoting Lynch v. Donnelly,
465 U.S. 668, 674 (1984)). It also recognized "the role
of God in our Nation's heritage, " pointing to other
Ten Commandment displays in federal buildings, including the
Supreme Court's own courtroom and the Library of
Congress, which reinforced the secular connection between our
Nation and the Ten Commandments. See id. at 687-89.
Though the Ten Commandments have religious significance, the
plurality noted that the Ten Commandments were given to
Moses, who "was a lawgiver as well as a religious
leader." Id. at 690. Finally, the plurality
viewed the placement of the monument on the Texas State
Capitol grounds as "far more passive" when compared
to other display cases, especially because the petitioner in
Van Orden "walked by the monument for a number
of years" before suing. Id. at 691. Taking all
of these considerations as a whole, the plurality concluded
that the display in Van Orden did not violate the
Breyer's concurrence, however, is controlling because it
is the narrowest ground upholding the majority. See Marks
v. United States, 430 U.S. 188, 193 (1977); A.T.
Massey Coal Co. v. Massanari, 305 F.3d 226, 236 (4th
Cir. 2002); see also Card v. City of Everett, 520
F.3d 1009, 1017 n.10 (9th Cir. 2008) (noting Justice
Breyer's concurrence controls); Staley v. Harris
Co., 485 F.3d 305, 308 n.1 (5th Cir. 2007) (same);
Bronx Household of Faith v. Bd. of Educ., 650 F.3d
30, 49 (2d Cir. 2011) (same); ACLU v. Grayson Co.,
591 F.3d 837, 847 (6th Cir. 2010) (applying Van
Orden and relying primarily on Justice Breyer's
concurrence). The concurrence explains that courts should
remain faithful to the "basic purposes" of the
Establishment Clause by examining, for example, the
circumstances surrounding the monument's placement, its
physical setting, and the length of time it remains
unchallenged. Van Orden, 545 U.S. at 698, 700-03
(Breyer, J., concurring). In addition, however, Justice
Breyer clarified that the Lemon test continues to
act as a "useful guidepost" in Establishment
Clause cases involving monuments with both secular and
sectarian meanings. Id. at 700. The controlling
Van Orden decision thus did not overrule
Lemon; to the contrary, Justice Breyer actually
recognized Lemon as a "more formal